Issues in Legal Scholarship
V INCENT V. L AKE E RIE T RANSPORTATION C O . AND THE
D OCTRINE OF N ECESSITY

Article 7
The Unwarranted Conclusions Drawn From
Vincent v. Lake Erie Transportation Co.
Concerning The Defense Of Necessity
George C. Christie∗
∗
James B. Duke Professor of Law, Duke University, [email protected]
c
Copyright 2006
DeGruyter.Allrightsreserved.
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Christie: The Unwarranted Conclusions Drawn From Vincent v. Lake Erie
I. INTRODUCTION
Few cases have captured more attention from philosophers interested in the law than Vincent
v. Lake Erie Transportation Co.,1 decided by the Supreme Court of Minnesota in 1910. Even
though Vincent was concerned only with the taking of property to save other property from
destruction, the case has become the starting point for nearly all scholarly discussions of the
propriety of taking or destroying the property of others to save life, and even figures in some
discussions of the propriety of killing an innocent person to save the lives of others. The
extensive range of situations in which the Vincent case is thought to be relevant is illustrated by
an ongoing discussion of the defense of necessity that focuses on two basic paradigm cases.
The first type of paradigm involves the destruction of property to save human life. As we
shall see, this paradigm also raises questions as to when one may take or destroy the property of
others in order to save one's own property or to further some other important interest. Joel
Feinberg, for example, poses the situation in which a backpacker is stranded in a remote area by
an unexpected blizzard.2 The backpacker breaks into an unoccupied cabin and waits there for
three days until the storm abates and he may safely leave.3 During that time, the backpacker
consumes the food stocks in the cabin and breaks up his unknown benefactor's furniture, burning
it in the fireplace to keep warm.4 Jules Coleman has constructed a simpler version of this first
paradigm in which Hal, a diabetic, loses his insulin in an accident.5 Before Hal lapses into a
coma, he rushes to the house of Carla, another diabetic.6 Carla is not at home, but somehow Hal
manages to get into her house.7 After first assuring himself that he has left Carla enough insulin
for her own daily dosage, Hal takes the insulin he needs to survive.8 In Coleman’s view, both his
example and Feinberg’s “are like the famous case of Vincent v. Lake Erie….”9
Coleman and Feinberg assert that the backpacker and Hal were justified, both legally and
morally, in doing what each did.10 Both rely on a supposed distinction between "infringing" a
person's rights and "violating" that person's rights.11 Coleman and Feinberg argue that neither the
cabin owner's nor Carla's rights have been violated because the backpacker and Hal have not
1
124 N.W. 221 (Minn. 1910), hereinafter cited as Vincent.
Joel Feinberg, Voluntary Euthanasia and the Inalienable Right to Life, 7 PHIL. & PUB. AFF. 93, 102 (1978).
3
Id.
4
Id.
5
JULES L. COLEMAN, RISKS AND WRONGS 282 (1992).
6
Id.
7
Id.
8
Id.
9
COLEMAN, supra note 5, at 293.
10
See COLEMAN, supra note 5, at 300; Feinberg, supra note 2, at 102.
11
See COLEMAN, supra note 5, at 300; Feinberg, supra note 2, at 101. The distinction appears to have been
developed by Judith Jarvis Thomson in Self-Defense and Rights, The Lindley Lecture, University of Kansas (Apr. 5,
1976), in JUDITH JARVIS THOMSON, RIGHTS, RESTITUTION,AND RISK 33 (William Parent ed., 1986) [hereinafter
THOMSON, RIGHTS, RESTITUTION, AND RISK]. She states that person A infringes person B's right that P (where P is a
statement about a state of affairs), when B has a right that P should be true (i.e., that the state of affairs should exist)
and A causes P to be false. Id. at 40. A does not violate B's right that P, however, unless A acts wrongly or unjustly in
causing P to be false. Id. Although A is free from blame when he merely infringes B's right, A has a moral and/or
legal obligation to compensate B because he did something B had a right that he not do. Id. at 41.
2
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Symposium: Vincent v. Lake Erie Transportation Co. and the Doctrine of Necessity [2006], Article 7
acted wrongly or unjustly.12 The rights of the cabin owner and of Carla have only been
infringed.13 Accordingly, since neither the backpacker nor Hal has acted wrongly, the takings in
both cases are justified rather than perhaps merely excused. Both the cabin owner and Carla
have, however, a right to be compensated for their losses.14 If they are not compensated by,
respectively, the backpacker and Hal, then their rights would indeed be violated.15
Coleman and Feinberg build upon the conclusions drawn from the backpacker and
diabetic examples to develop more sweeping conclusions about the conditions under which one
may take or destroy property, provided one is prepared to pay compensation for the property
destroyed.16 These conclusions have very little legal support, but they are, as we shall see,
consistent with the treatment of these subjects in both the Restatement of Torts and Restatement
(Second) of Torts, which are equally lacking in precedential support.17
The second type of paradigm case has been discussed in great detail by Judith Jarvis
Thomson. It involves not the destruction of property to save life, but the killing of one innocent
person to save the lives of a greater number of innocent persons. The core of the paradigm is the
situation first presented by Philippa Foot18 in which, as developed by Thomson, "[a]n out-ofcontrol trolley is hurtling down a track."19 Ahead of the trolley are five men who will certainly be
killed if the trolley continues on its course. “Bloggs is a passerby, who happens at the moment to
be standing by the track next to the switch."20 If Bloggs throws the switch the trolley will be
shunted off to a spur. The five men will be saved, but unfortunately a sixth man, who is
immobilized on the spur, is certain to be killed. In short, if Bloggs does nothing, five men will be
killed. If he throws the switch, the five will be saved but a sixth man, equally innocent, will be
killed. What should Bloggs do? Thomson concludes that Bloggs would be morally justified in
throwing the switch, although he would not be morally compelled to do so.21 She spends the
better part of two books adding more and more permutations to the paradigm in an effort to
explain and justify her conclusions. Her conclusions are echoed, albeit less ambitiously, in the
12
See COLEMAN, supra note 5, at 300; Feinberg, supra note 2, at 102.
See COLEMAN, supra note 5, at 300; Feinberg, supra note 2, at 102.
14
See COLEMAN, supra note 5, at 300-01; Feinberg, supra note 2, at 102.
15
See COLEMAN, supra note 5, at 300-01; Feinberg, supra note 2, at 102.
16
See COLEMAN, supra note 5, at 296-302. As we shall see, these more sweeping conclusions include the supposed
obligation to pay compensation when property is destroyed to save human life. Indeed, Feinberg extends these
principles, suggesting that if an aggressor's potential victim, threatened with death, unavoidably kills a child the
aggressor employs as a shield, the would-be victim should pay compensation for the death of the child. See
Feinberg, supra note 2, at 103.
17
See infra Part III, B.
18
See Philippa Foot, The Problem of Abortion and the Doctrine of the Double Effect, 5 OXFORD REV. 5, 8-9 (1967),
reprinted in PHILIPPA FOOT, VIRTUES AND VICES AND OTHER ESSAYS IN MORAL PHILOSOPHY 19, 23 (1978).
19
JUDITH JARVIS THOMSON, THE REALM OF RIGHTS 176 (1990) [hereinafter THOMSON, REALM OF RIGHTS].
Thomson also devoted considerable attention to the "trolley problem" in her earlier work. See, e.g., Judith Jarvis
Thomson, Killing, Letting Die, and the Trolley Problem, 59 THE MONIST 204 (1976) [hereinafter THOMSON,
Killing], reprinted in THOMSON, RIGHTS, RESTITUTION, AND RISK, supra note 11, at 78; Judith Jarvis Thomson, The
Trolley Problem, 94 YALE L.J. 1395 (1985) [hereinafter THOMSON, Trolley Problem], reprinted in THOMSON,
RIGHTS, RESTITUTION, AND RISK, supra note 11, at 94. There are minor verbal differences in the formulation of the
core case as it appears in each of these pieces. For stylistic reasons, I have chosen to use one of the verbal
formulations from her later book.
20
THOMSON, REALM OF RIGHTS, supra note 19, at 176.
21
Id. at 176-77.
13
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Christie: The Unwarranted Conclusions Drawn From Vincent v. Lake Erie
Model Penal Code, which suggests, with an express reference to the Vincent case, that what it
calls the “Choice of Evils defense” can indeed apply not only as a moral justification but also as a
legal justification for killing an innocent person in cases that resemble Thomson’s Trolley case.22
As will be evident from the discussion below, the facts in Vincent are quite unlike
Thomson’s Trolley case. Accordingly, this article will not discuss any further the issue of
whether one can (or should) take the life of an innocent person to save the lives of a larger
number of other innocent people.23 Rather, since the focus of this collection of papers is on the
Vincent case, and since that case figures much more prominently in the discussion of when
property can be destroyed or taken to save the life or property of others, this paper will focus on
the first paradigm and the conclusions drawn by Feinberg and Coleman and supported by the
Restatements. I think these conclusions are seriously flawed, and that the provisions in the two
Restatements are equally flawed. In the discussion that follows, I will attempt to justify these
assertions. In order to help the reader follow the discussion, I set out my ultimate conclusions in
advance. Unlike Coleman, Feinberg, and others including the Restatements, I do not think that
one has to pay compensation if property is destroyed to save human life. At the same time, again
unlike Coleman, Feinberg, and others, including again the Restatements, I do not think that a
private person has a privilege either to destroy someone else's property to save his own property
or to use or consume the property of others, for whatever reason, over their objections.
II. WHAT DID VINCENT V. LAKE ERIE TRANSPORTATION CO. DECIDE?
In Vincent, the steamship Reynolds was moored to the plaintiff's dock while discharging
cargo. During the unloading process, a storm developed which, by the time the unloading
process was completed, was producing winds of fifty miles per hour.25 The storm continued to
increase in intensity throughout the night.26 After the Reynolds discharged her cargo, she
signaled for a tug to tow her from the dock, but no tug could be obtained because of the storm.27
The court accepted as fact that, had the Reynolds cast off her lines, she would have drifted away
from the dock.28 The Reynolds instead kept her lines fast and "as soon as one parted or chafed it
was replaced, sometimes with a larger one."29 In the course of keeping fast to the dock, the wind
and waves struck the Reynolds with such force "that she was constantly being lifted and thrown
24
22
MODEL PENAL CODE, § 3.02, cmt. 3, n. 11 (Official Draft and Revised Comments, 1985), hereinafter OFFICIAL
MODEL PENAL CODE. Most of the literature uses the term “Leser Evil defense.”
23
Those interested in my views on this issue can find them in the second half of my article, The Defense of Necessity
Considered from the Legal and Moral Points of View, 48 Duke L. J. 975, 1011-42 (1999), from the first half of
which much of this paper has, with some modification, been taken, and from Chapter 7 of my book, THE NOTION OF
AN IDEAL AUDIENCE IN LEGAL ARGUMENT (2000). The latter, which is based on the former article, has a somewhat
more extensive discussion of the non-Anglo American law on the issue. I should note here, however, that I
completely disagree with the conclusions of Foot and Thomson, as well as the suggestion in the Model Penal Code
that a person acting in a private capacity can ever intentionally kill an innocent person to save the lives of a greater
number of other people.
24
Vincent, 124 N.W. at 221.
25
Id.
26
Id.
27
Id.
28
See id.
29
Id.
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Symposium: Vincent v. Lake Erie Transportation Co. and the Doctrine of Necessity [2006], Article 7
against the dock, resulting in its damage, as found by the jury, to the amount of $500."30 In
affirming a judgment for that amount in favor of the dock owner, the court declared that the
master of the Reynolds was justified in not attempting to leave the dock during the storm.31
Nevertheless, the court continued:
[T]hose in charge of the vessel deliberately and by their direct efforts held her
in such a position that the damage to the dock resulted, and, having thus
preserved the ship at the expense of the dock, it seems to us that her owners are
responsible to the dock owners to the extent of the injury inflicted.32
Two judges dissented. They interpreted the argument of the majority as accepting "that if the
ropes, or cables, first attached to the dock had not parted, or if, in the first instance, the master
had used the stronger cables, there would be no liability."33 Given that the master could not
reasonably have anticipated the severity of the storm and the need for stronger cables, they did
not believe that liability should attach for the "renewal of cables to keep the boat from being cast
adrift at the mercy of the tempest."34 For the dissent, the damage to the dock was simply storm
damage -- the consequences of an act of God. This certainly would seem to be the correct
conclusion if the Reynolds had not finished unloading; and there was in fact a House of Lords
decision on point which escaped the notice of the court in Vincent. 35
30
Id.
See id.
32
Id. at 222.
33
Id. (Lewis, J., joined by Jaggard, J., dissenting).
34
Id.
35
In River Wear Comm'rs v. Adamson, 2 App. Cas. 743 (1877), a ship was trying to enter the plaintiff's dock to
escape a violent storm. The ship went aground and the crew were rescued. After the rescue, when the tide rose, the
abandoned ship was driven against the dock causing substantial damages of over £2800. Id. at 749. (It should be
noted that this amount is much more than the $500 involved in Vincent.) The question before the House of Lords
was whether the common law rule that a showing of negligence was required before liability could be imposed had
been changed by statute. Their Lordships held that it had not. Adamson, [1877] 2 App. Cas. at 750-52 (construing
The Harbours, Docks, and Piers Act, 1847, 10 Vict. c. 27). As Lord Blackburn declared:
31
[T]he Common Law is, I think, as follows: Property adjoining to a spot on which the public have
a right to carry on traffic is liable to be injured by that traffic. In this respect there is no difference
between a shop, the railings or windows of which may be broken by a carriage on the road, and a
pier adjoining to a harbour or navigable river or the sea, which is liable to be injured by a ship. In
either case the owner of the injured property must bear his own loss, unless he can establish that
some other person is in fault, and liable to make it good. And he does not establish this against a
person merely by shewing that he is the owner of the carriage or ship which did the mischief, for
the owner incurs no liability merely because he is the owner.
Id. at 767.
For liability to arise, the damage must have been done "wilfully," or have arisen as a result of negligence. Id.
To give a more modern illustration of the same issue that is more closely patterned on Vincent, suppose one visits a
friend at the beach and parks his car in the friend's driveway. If a storm develops and the car is thrown against the
side of the friend's house, should the driver be liable for the damage to the house merely because the house kept the
car from being cast into the sea? Should the law require the driver to move his car when the wind whips up so as to
avoid such a risk?
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Christie: The Unwarranted Conclusions Drawn From Vincent v. Lake Erie
III. THE CONCLUSIONS IMPROPERLY DRAWN FROM THE VINCENT CASE
A. Some Possible Reasons Why Vincent Has Been Interpreted the Way It Has
In his extensive discussion of the case and its support for his legal and moral conclusions
about the circumstances under which one may justifiably take or destroy the property of others,
Coleman describes Vincent simply as a case in which "[t]he court held that even though the
ship's captain acted correctly in firmly tying the boat to the dock, he was required to compensate
the dock owner."36 However, Coleman fails to note, much less to attach any significance to, the
insistence of the dissenters in Vincent that it was common ground between themselves and the
majority that, had the original lines not failed, there would have been no liability, a conclusion
that I believe is legally the correct one.37 Had the majority addressed themselves to this portion
of the dissenting opinion, they might have made less sweeping statements about when
compensation must be paid for the destruction of another person's property. That is, accepting as
an obvious truism that one may not consciously sacrifice someone else's property to save one's
own property does not require one to conclude that, any time property is damaged or destroyed
in emergency conditions, any person who benefits from that damage or destruction is under a
legal obligation to pay compensation.
Nevertheless, given the actual opinion produced by the majority, Coleman might justify
his failure to consider what was a significant factor in the Vincent decision -- the continual
replacing of the ship's moorings as they broke -- by pointing to a number of broad dicta in the
majority opinion.38 These dicta seemingly support his conclusion that if one destroys property in
order to save one's life -- an issue that was clearly not involved in Vincent39 -- one must pay
compensation, even if one is in no way at fault in creating the life-threatening situation.40 This
conclusion is clearly against the weight of legal authority41 and, from a moral perspective, is
highly questionable. Moreover, as will be seen, although the law does sometimes permit property
to be destroyed to save life, the situations in which that may be done are much more limited than
Coleman acknowledges. Coleman is also mistaken in his further conclusion that, so long as one
36
COLEMAN, supra note 5, at 168. See also RICHARD EPSTEIN, A THEORY OF STRICT LIABILITY, at 11-12 (1980)
(using Vincent to show that legal liability does not always turn on whether a party acted improperly).
37
My confidence in this conclusion is strengthened by the argument in Adamson, [1877] 2 App. Cas. 743, discussed
supra, at note 35.
38
See, e.g., Vincent, 124 N.W. at 222 ("Theologians hold that a starving man may, without moral guilt, take what is
necessary to sustain life; but it could hardly be said that the obligation would not be upon such a person to pay the
value of the property so taken when he became able to do so.").
39
There is absolutely no indication in either of the opinions in Vincent that the storm presented a danger to the lives
of the crew of the Reynolds and several indications that there was no such danger. For example, the crew was able
safely to replace the cables and no one challenged one witness's assertion that the worst that would have happened if
the Reynolds tried to leave her berth is that she would have gone aground in the mudflats. See id. at 221. In rejecting
the conclusiveness of that testimony, the court noted that "those in charge of the dock and vessel . . . were not
required to use the highest human intelligence, nor were they required to resort to every possible experiment which
could be suggested for the preservation of their property." Id. (emphasis added).
40
See COLEMAN, supra note 5, at 292-96.
41
See infra notes 61-73 and accompanying text.
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Symposium: Vincent v. Lake Erie Transportation Co. and the Doctrine of Necessity [2006], Article 7
is prepared to pay appropriate compensation, one has a privilege not only to destroy but also to
consume the property of others in order to save his own life.42
A second way in which Coleman might justify his failure to consider the significance of
the constant reattaching of the cables is by pointing to the Vincent majority's discussion of the
only two cases cited in support of its decision. The first, Depue v. Flatau,43 a Minnesota case
decided only a few years earlier, involved a cattle and fur buyer who had been invited to stay for
dinner by a farmer. The buyer testified that he became ill after the meal and asked the farmer if
he could stay for the night.44 The farmer refused and assisted the buyer to his buggy, pointing
him in the direction of a town some seven miles away.45 The buyer was found the next morning
by the roadside, nearly frozen to death.46 He brought an action against the farmer and his son.47
The court held that the plaintiff could recover for the injuries he had suffered as a result of his
exposure to the elements if the jury found on remand that the defendants were aware of the
plaintiff's "serious condition."48
In discussing Depue, the Vincent court asked "[i]f . . . the owner of the premises had
furnished the traveler with proper accommodations and medical attendance, would [the traveler]
have been able to defeat an action brought against him for their reasonable worth?"49 Certainly,
if the farmer had paid for medical care and medicines for the buyer, his request for
reimbursement for these items would have been legally appropriate on a quantum meruit basis.50
The same conclusion would arguably hold for any food given to the buyer after he had ceased to
be a guest. That the buyer would have been liable to pay for the privilege of remaining sheltered
during a very cold night until he could safely make other arrangements for himself is, however, a
highly questionable conclusion about a matter that was not at issue in Depue.
The other case discussed in Vincent was Ploof v. Putnam,51 a case decided by the
Supreme Court of Vermont two years before Vincent. In Ploof, according to the complaint, a
husband and wife and their two minor children were sailing on Lake Champlain on a "loaded
sloop."52 There "then arose a sudden and violent tempest, whereby the sloop and the property
and persons therein were placed in great danger of destruction."53 Whereupon, "to save these
from destruction or injury, the plaintiff was compelled to . . . moor the sloop to defendant's
42
See COLEMAN, supra note 5, at 292-98.
111 N.W. 1 (Minn. 1907).
44
Id.
45
Id. at 1-2.
46
Id. at 2.
47
Iid.
48
Id. at 3.
49
Vincent, 124 N.W. at 222.
50
See, e.g., RESTATEMENT OF RESTITUTION § 1 (1937) ("A person who has been unjustly enriched at the expense of
another is required to make restitution to the other."); id. § 112 ("A person who without mistake, coercion or request
has unconditionally conferred a benefit upon another is not entitled to restitution, except where the benefit was
conferred under circumstances making such action necessary for the protection of the interests of the other or of
third persons.").
51
71 A. 188 (Vt. 1908).
52
Id. at 188.
53
Id.
43
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Christie: The Unwarranted Conclusions Drawn From Vincent v. Lake Erie
dock,"54 the defendant being the owner of an island in the lake. It was then alleged that the
defendant's servant unmoored the sloop, which was cast upon the shore with the result that "the
sloop and its contents were thereby destroyed, and the plaintiff and his wife and children [were]
cast into the lake and upon the shore, receiving injuries."55 The complaint charged the defendant
alternatively with trespass (i.e., battery) and trespass on the case (i.e., negligence).56 The
defendant demurred.57 The trial court overruled the demurrers and this decision was affirmed on
appeal.58
The Vincent majority asserted that "[i]f, in [Ploof], the vessel had been permitted to
remain, and the dock had suffered an injury, we believe the shipowner would have been held
liable for the injury done."59 It is this statement in Vincent that most directly supports the
assertion made by Coleman and others, that compensation must be paid when property is
destroyed to save innocent life.60 This conclusion is not, however, supported by anything in
Ploof, as can be easily demonstrated. For example, a case cited and discussed at length in Ploof
is Mouse's Case,61 an English case decided in King's Bench in 1609. In Mouse's Case, personal
property belonging to the plaintiff had been thrown overboard by a fellow passenger to lighten a
barge that was in danger of foundering while being used as a ferry across the Thames at
Gravesend.62 The plaintiff subsequently brought an action in trespass against the passenger who
had jettisoned his property.63 The court non-suited the plaintiff and declared that if the ferryman
had overloaded the barge, "for [the] safety of the lives of passengers . . . it is lawful for any
passenger to cast the things out of the barge."64 The court added that the owners would have a
remedy against the ferryman for overloading the barge; "but if no surcharge was, but the danger
accrued only by the act of God, as by tempest, no default being in the ferryman, everyone ought
to bear his loss for the safeguard and life of a man."65 Nothing could be more contrary to the
statement of the Vincent majority.
This, to me, self-evident proposition of law was unequivocally reaffirmed by the House
of Lords more recently in Esso Petroleum Co. v. Southport Corp.66 That case involved a claim
for the "considerable expense" incurred to clean up the plaintiff's premises after a tanker in
difficulty discharged oil to prevent "breaking her back," which would have endangered not only
the ship and her cargo but also the lives of the crew.67 The case was brought under the common
54
Id.
Id. at 189.
56
Id.
57
Id.
58
Id. at 188.
59
Vincent, 124 N.W. at 222.
60
See COLEMAN, supra note 5, at 300-01; see also Feinberg, supra note 2, at 103 (arguing that compensation would
be owed to parents of an innocent child used as a "shield" who is killed along with an aggressor to preserve another
innocent life).
61
77 Eng. Rep. 1341 (K.B. 1609), cited with approval in Ploof, 71 A. at 189.
62
Id. at 1341-42.
63
Id.
64
Id. at 1342.
65
Id. at 1342 (emphasis added); see also Ploof, 71 A. at 189 (citing Mouse's Case, 77 Eng. Rep. 1341, and quoting
this passage).
66
1956 App. Cas. 218.
67
Id. at 220.
55
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Symposium: Vincent v. Lake Erie Transportation Co. and the Doctrine of Necessity [2006], Article 7
law headings of trespass, nuisance, and negligence.68 Accepting the trial judge's finding that the
tanker's owner had not been guilty of negligence, the House of Lords affirmed that there was no
liability on the part of the tanker's owners.69 The trial judge, Sir Patrick Devlin (later Lord
Devlin), had declared that "[t]he safety of human lives belongs to a different scale of values from
the safety of property. The two are beyond comparison and the necessity for saving life has at all
times been considered a proper ground for inflicting such damage as may be necessary on
another's property."70
The principle that property may be destroyed to save human life is recognized in United
States admiralty law as well. In modern times, if the circumstances involved in Mouse's Case
had arisen within the admiralty jurisdiction (i.e., somewhere on the high seas or in navigable
waters),71 all of the cargo and the vessel itself would have been assessed a general average
contribution to pay for the portion of the cargo that was jettisoned, but no contribution would
have been assessed against those whose lives were saved.72
In summary, the very few cases addressing the issue have all held that property may be
destroyed when necessary to save human life. These cases have also held that no compensation is
68
Id. at 219.
See id.
70
Southport Corp. v. Esso Petroleum Co., 2 All E.R. 1204, 1209-10 (Q.B. 1953).
71
See 28 U.S.C. § 1333 (1994).
72
See GUSTAVUS H. ROBINSON, HANDBOOK OF ADMIRALTY LAW IN THE UNITED STATES 778-79 (1939) (describing
the "general average" rule). Both the Convention for the Unification of Certain Rules with Respect to Assistance and
Salvage at Sea, Sept. 23, 1910, 37 Stat. 1658, [hereinafter Brussels Convention], and its successor, the International
Convention on Salvage, Apr. 28, 1989, Hein's No. KAV 3169 [hereinafter London Convention], provide that "[n]o
remuneration is due from the persons whose lives are saved," although both conventions also provide that "nothing
in this article shall affect the provisions of the national law on this subject." Brussels Convention, supra, art. 9, 37
Stat. at 1671; London Convention, supra, art. 16(1), at 10. Both the United Kingdom and the United States are
parties to the Brussels Convention, see Brussels Convention, supra, 37 Stat. at 1668 (naming the United Kingdom
and the United States as signatories), and the London Convention, see M.J. BOWMAN & D.J. HARRIS,
MULTILATERAL TREATIES 79-80 (Supp. 1995). To encourage the rescue of human beings, the London Convention
grants a "salvor of human life" a share of the payment awarded to the salvor of the vessel or other property or
awarded to someone for preventing or minimizing environmental damage. London Convention, supra, art. 16(2), at
10; see also Message from the President of the United States Transmitting the International Convention on Salvage,
S. TREATY DOC. NO. 102-12, at iii ("[The London] Convention is designed to promote sound environmental
practices by commercial salvors and to strengthen the maritime transportation industries by ensuring that salvors
receive adequate compensation."); Mark J. Yost, International Maritime Law & the U.S. Admiralty Lawyer: A
Current Assessment, 7 U.S.F. MAR. L.J. 313, 337-38 (1995) (arguing that the London Convention strikes a balance
between preserving life and protecting the environment).
69
Whether in the modern age Mouse's Case would fall within the admiralty jurisdiction in England is not important for
present purposes. Indeed, Vincent would undoubtedly not fall within the admiralty jurisdiction in the United States.
See ROBINSON, supra, at 56-57 ("Suits by land structures, even for injury by vessels, must be at common law. . . .
[I]n a collision between a vessel and a structure not within the maritime categories the vessel alone may resort to
admiralty.") (citing Hough v. Western Transp. Co (The Plymouth), 70 U.S. (3 Wall.) 20 (1865); Ex parte Phenix Ins.
Co., 118 U.S. 610 (1886)). Cf. id. at 57 & n.7 ("The curiosity now obtains that while the shore victim may not
himself invoke the admiralty law, the floating tort-feasor may invoke it against the shore victim's common law
suit.") (citing Richardson v. Harmon, 222 U.S. 96, 106-07 (1911) (holding that, under the Limited Liability Act of
1851, a ship owner is entitled to employ admiralty law to limit common law claims "whether the liability be strictly
maritime or from a tort non-maritime")). At any rate, both Mouse's Case and Vincent, as well as Ploof and
Southport, were brought as common law cases.
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Christie: The Unwarranted Conclusions Drawn From Vincent v. Lake Erie
payable for having done so, so long as the person who destroys the property and the person
whose life is saved are not at fault in creating the life-threatening danger which necessitates the
destruction of property.73 Nevertheless, as the next few pages will demonstrate, the siren song of
the dicta in Vincent has proven irresistible, not only to academics who are more interested in the
theoretical questions raised by the case, but also to those who purport to state what in fact the
law is.
B. The Legally Unsupported Conclusions of the Restatements
As intimated above, several provisions in the Restatement of Torts, which appeared in
1934, and the Restatement (Second) of Torts, which appeared in 1965, would seem to support the
conclusions of Coleman and Feinberg. For example, sections 197 of both the original
Restatement and the Restatement (Second), with reliance on Vincent, take the position that one is
privileged to enter the land of another in order to prevent serious harm to oneself, to one's land,
to one's chattels, or to the person, land, or chattels of another.74 A person who enters under this
privilege, however, must pay compensation for any harm done to the possessor's interest in the
73
It is not clear how this situation would be handled under continental legal systems. For example, section 904 of
the German Civil Code denies the owner of property the right "to prohibit the interference [with his rights of
ownership] if the interference is necessary for the avoidance of a present danger and the damage threatened is
disproportionally great compared to the damage caused" to him as the owner of the property destroyed. Section 904
BGB, translated in THE GERMAN CIVIL CODE 169 (Simon L. Goren trans., 1994). Section 904 also declares that
"[t]he owner [of the property destroyed] may demand compensation for the loss suffered by him." Id. That article
covers risks to property as well as life. Whether the provisions for compensation are applicable when property is
destroyed to save life is quite unclear. If the property destroyer is in the process of actually threatening human life
then innocent people have the right to destroy it under § 228 of the German Civil to avert the threat but that question
only covers the self-defense situation. It should be noted that Germany is a party to the Brussels Convention, see
Brussels Convention, supra note 72, 37 Stat. at 1668, which suggests that no compensation would be payable under
German admiralty law when property is destroyed to save lives. The scope of the privilege to destroy property to
save property under Section 904 is also unclear. See infra note 138.
Article 122-7 of the French Penal Code provides that a person who, faced with a present or imminent danger to
himself or another or to property, performs an act necessary for the safety of a person or of property is not subject to
criminal responsibility unless there is a disproportionality between the means employed and the seriousness of the
threat. See CODE PÉNAL [C. PÉN] art. 122-7 (Fr.) (author's translation). Gaston Stefani and his colleagues, Professors
Levasseur and Bouloc, assert that the highest court of ordinary jurisdiction, the Cour de cassation, does not appear to
accept the proposition that compensation is due when property is destroyed to save life - thus favoring the position
taken by the English and American cases - although the authors observe that commentators continue to debate the
issue. See GASTON STEFANI ET AL., DROIT PÉNAL GÉNÉRAL 315 (15th ed. 1995).
74
See RESTATEMENT OF TORTS § 197 cmt. a, illus. 2 & cmt. j, illus. 13 (1934) [hereinafter RESTATEMENT];
RESTATEMENT (SECOND) OF TORTS § 197 cmt. A, illus. 2 & cmt. j, illus. 13 (1965) [hereinafter RESTATEMENT
(SECOND)]; RESTATEMENT (SECOND) OF TORTS, APPENDIX, Reporter’s notes to § 197 (1966) [hereinafter
RESTATEMENT (SECOND) APP.] (stating that illustrations 2 and 13 were each “based on” Vincent); see also
RESTATEMENT OF TORTS (Tentative Draft No. 11), § 1041 cmt. b, illus. 2 & cmt. i, Reporter’s notes [hereinafter
RESTATEMENT (Tentative Draft No. 11)] (characterizing Vincent as a case in which A was held “liable for . . . harm
occasioned to B’s dock by the pounding of A’s boat against it”). Section 1041 of the tentative draft prepared in 1933
became section 197 when the original Restatement was completed. These provisions deal with the privilege to enter
land in emergency situations and, in describing the scope of the privilege, discuss the permissibility of destroying or
damaging the property of others in the course of exercising the privilege.
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Symposium: Vincent v. Lake Erie Transportation Co. and the Doctrine of Necessity [2006], Article 7
land.75 A similar provision, section 263, covers what amounts to trespass to chattels and the
conversion of chattels. Section 263 of the Restatement limited the privilege to situations in which
chattels were destroyed or used to save life or to avoid serious bodily harm,76 and took no
position as to whether one was authorized to take a chattel over the objection of its owner.77
Section 263 of the Restatement (Second) not only extends the privilege to cover the destruction
or use of chattels to save property, but also permits the taking of property even if its possessor
objects.78 The person destroying or using the property is, however, liable for any harm done.79
The reason given by the drafters of both the Restatement and the Restatement (Second) for
recognizing a "privilege" to destroy or use others' chattels to save one's property was the same: to
take from the possessor of the chattel "the privilege . . . to use reasonable force to defend his
exclusive possession."80 The Reporter's notes to the Restatement (Second) are at least candid
enough to admit that "[t]here is scarcely any authority to support the principle stated in this
Section, and it must rest largely upon the analogy to the corresponding privilege to interfere with
the exclusive possession of land, stated in § 197."81 There then follows a "see" citation82 to
Mouse's Case which, as we have seen,83 held that no compensation is due when property is
destroyed to save life.84
The Restatements fail to cite any cases in which compensation was actually awarded
when property was destroyed in order to save life. The Reporter's notes to section 197 do cite a
75
RESTATEMENT (SECOND), § 197(2). The first Restatement required the payment of compensation when a person
destroyed property to protect his own interests, but took no position on whether one who acted to protect the
interests of third party was obliged to pay compensation. See RESTATEMENT, § 197(2) & § 197 first caveat.
76
See RESTATEMENT, § 263(1) ("One is privileged to use or otherwise intentionally intermeddle with a chattel while
in the possession of another for the purpose of protecting himself, the other, or a third person from death or serious
bodily harm . . . .").
77
See id.; see also infra note 126(discussing this point in greater detail). The Restatement also declared that the
Institute "expresse[d] no opinion" as to whether chattels could be destroyed to save property. Id. § 263 first caveat.
78
See RESTATEMENT (SECOND), § 263 cmt. b ("Since the actor does not become a trespasser when making
reasonable use of or otherwise intermeddling with another's chattel to protect himself or another, such intermeddling
cannot be restricted by the possessor of the chattel.").
79
See id. § 263(2) ("Where the act is for the benefit of the actor or a third person, he is subject to liability for any
harm caused by the exercise of the privilege."). The first Restatement contained a caveat as to whether an actor was
liable for damages to a chattel caused by his intermeddling for the benefit of a third party. See RESTATEMENT, § 263
third caveat.
80
RESTATEMENT, § 263 cmt. b; RESTATEMENT (SECOND), § 263, cmt. b.
81
RESTATEMENT (SECOND) APP., supra note 74, Reporter's notes to § 263.
82
See id. The other case cited in the Reporter's notes to the Restatement (Second) is McKeesport Sawmill Co. v.
Pennsylvania Co., 122 F. 184 (W.D. Pa. 1903), which involved a runaway barge that became embedded in the
defendant's bridge and which was destroyed in the process of dislodging it. Not surprisingly, the defendant was not
required to compensate the plaintiff. See McKeesport, 122 F. at 187 (stating that "[the defendant] does not have to
try and save the plaintiff's property, but simply not to recklessly or unnecessarily injure or destroy it"). It was clearly
a type of self-defense.
83
See supra notes 61-65.
84
See Mouse's Case, 77 Eng. Rep. 1341, 1342 (K.B. 1609):
[I]n such a time . . . of necessity, it is lawful for any passenger to cast the things out of the barge:
and the owners shall have their remedy upon the surcharge against the ferryman, for the fault was
in him upon the surcharge; but if no surcharge was, but the danger accrued only the act of God, as
by tempest, no default being in the ferryman, everyone ought to bear his loss for the safeguard and
life of a man.
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Christie: The Unwarranted Conclusions Drawn From Vincent v. Lake Erie
seventeenth-century English case that ostensibly involved the taking of property to save life.
That case is Gilbert v. Stone,85 in which the court held that duress was no defense for trespass to
the plaintiff's land or for taking the plaintiff's gelding when the defendant claimed he did so
because "twelve armed men . . . threatened to kill him" if he did not.86 The fact that duress was
held to be no justification for the trespass or for taking the horse, however, hardly supports the
American Law Institute's contention that compensation must be paid whenever real property or
chattels are destroyed in an effort, however justifiable, to save lives. No one who reads the case
could reasonably conclude that the court was not simply requiring the defendant to pay for the
horse he took, but also recognizing a privilege on the part of the defendant to take the horse. Yet
the drafters of the Restatement disposed of Gilbert by suggesting that it is not inconsistent with
the recognition of an "incomplete privilege."87 Leaving aside what might be said to be an
“incomplete privilege,” there is certainly no indication that by citing the case the American Law
Institute intended to support the proposition that one is privileged to engage in what would
appear to be theft in response to criminal threats. Furthermore, since the court in Gilbert held that
damages for trespass were also appropriate, despite the absence of any indication of damage to
land or buildings, the case, if anything, is actually inconsistent with the general privilege that the
Restatements espouse.
The lack of a precedential basis for the original Restatement position was not cured by
the more extensive case citation that accompanies the Restatement (Second). One of the
additional cases cited in the Reporter's notes to section 197 of the Restatement (Second) is
Newcomb v. Tisdale,88 a California case decided in 1881 and involving an action to recover the
damage which occurred because the defendants cut a levee. The defendants raised the defense
that the levee was cut in order "to save life and property."89 The trial judge refused to let the jury
consider this defense.90 The Supreme Court of California reversed, observing, in a brief opinion,
that "such necessity existed" and therefore the case should have been submitted to the jury.91
Two justices dissented because they did not believe that the cutting was necessary to save lives
and because, in their view, "[n]ecessity, to save their own property, would not have justified
defendants in this destruction of plaintiffs' property."92 Both the majority and the dissent
therefore contradict the Restatements, first in denying the landowner compensation because his
property was destroyed to save life, and then in refusing to recognize any privilege to destroy
property to save property.
85
82 Eng. Rep. 539 (K.B. 1648), cited in RESTATEMENT (SECOND) APP., Reporter's notes to § 197, cmt. j;
RESTATEMENT (Tentative Draft No. 11), Reporter's notes to § 1041, cmt. i. As already noted, when the original
Restatement was completed in 1934, it adopted Section 1041 of the tentative draft as Section 197.
86
Gilbert, 82 Eng. Rep. at 539.
87
RESTATEMENT (Tentative Draft No. 11), Reporter's notes to § 1401, cmt. i. The Restatement (Second) simply
buries the case without comment in a long string cite. See RESTATEMENT (SECOND) APP., Reporter's notes to § 197,
cmt. j.
88
62 Cal. 575 (1881), cited in RESTATEMENT (SECOND) APP., Reporter's notes to § 197, cmt. j.
89
Newcomb, 62 Cal. at 576 (emphasis added).
90
Id. The jury was instead instructed that if the levee was lawfully constructed, "then the defendants had no right to
cut [it] without the consent of the owners"). Id.
91
Id.
92
Id. at 579 (Myrick, J., dissenting).
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Symposium: Vincent v. Lake Erie Transportation Co. and the Doctrine of Necessity [2006], Article 7
A case decided after publication of the Restatement (Second), however, does offer some
support for the position taken by the two Restatements. In Ruiz v. Forman,93 decided by the
Texas Court of Civil Appeals in 1974, a driver swerved to avoid an oncoming vehicle and
entered the plaintiff's land, causing $270 worth of property damage.94 The jury found for the
defendant but the trial court granted the plaintiff's motion for judgment notwithstanding the
verdict.95 On appeal, the parties stipulated that the defendant had intentionally entered the
plaintiff's land.96 If that were so, the court declared, the case would clearly come within the ambit
of section 197 of the Restatement (Second) as a privileged entry onto the property of another.97
The "culpable or moral fault, if any, is said to be attributed to the actor's refusal to pay for the
damage done in the course of serving his own interests rather than in what he did," while "[t]he
legal fault centers around the notion that there was an intentional invasion of a legally protected
interest."98 These considerations "would afford a basis for a simple affirmance of the case."99 The
court went on to note, however, that the defendant testified at trial that he "'consciously and
intentionally turned his wheels to the right to avoid hitting the truck.'"100 Based on this item in
the trial record, the defendant-appellant argued that notwithstanding his stipulation, his entry
upon the plaintiff's land was in point of fact not a trespass because the entry upon the plaintiff's
land was neither intentional nor the result of negligence.101 The court concluded that the
defendant would be liable under Texas law, even if he did not intend to invade anyone's land,
because it was sufficient that he intended the act (namely, turning the wheels) that eventually
caused the trespass.102 While the court noted that "[p]ossibly some comfort can be afforded the
Appellant by Professor Prosser, who anticipates that Texas will abandon its present position," it
concluded that "[t]his is for the Texas Supreme Court to decide."103 It is perhaps amusing that the
only case that clearly echoes the Restatement (Second) is one that cites the Restatement (Second)
as its sole authority.
What conclusion is to be drawn from this review of the case law? There are few cases in
England or the United States directly on point but the weight of such cases as there are,
93
514 S.W.2d 817 (Tex. Civ. App. 1974).
Id.
95
Id.
96
Id. at 818.
97
See id.
98
Id. (emphasis added). The court cited an article that briefly addresses the elements of trespass to land but has no
analysis at all of the problem with which we are concerned. See id. (citing W. Page Keeton & Lee Jones, Jr., Tort
Liability and the Oil and Gas Industry II, 39 TEX. L. REV. 253 (1961)).
99
Id.
100
Id.
101
See id.
102
See id. at 819.
103
Id. (citing WILLIAM L. PROSSER, HANDBOOK OF THE LAW OF TORTS § 13, at 64-65 (4th ed. 1971) (predicting that
decisions in Texas limiting liability "to cases in which the defendant has done some affirmative volitional act which
immediately causes the invasion of the land . . . foreshadow ultimate abandonment [of the rule]")). At the time,
Texas was one of a minority of states that still imposed liability upon a person who accidentally trespassed on real
property by stumbling or losing control of a vehicle. Most states would not impose liability in such circumstances in
the absence of a showing that the defendant’s stumbling or loss of control of his vehicle was a result of his own
negligence. See PROSSER, supra, § 13, at 64-65 ("[The] prevailing position is that of the Restatement of Torts, which
finds liability for trespass only in the case of intentional intrusion, or negligence, or some 'abnormally dangerous
activity' on the part of the defendant.").
94
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Christie: The Unwarranted Conclusions Drawn From Vincent v. Lake Erie
particularly in England, is clearly contrary to the position taken by sections 197 and 263 of the
Restatements, and by Coleman and Feinberg. These cases and the doctrines of admiralty law
support my contention that when neither the actor nor those whose lives are saved are legally at
fault for placing themselves in the perilous position from which they can only be saved by
destroying the property of another, they bear no legal liability for destroying that property.
Most of the legal scholarship tracks and relies on the Restatements' position,104 but some
is in accord with the position taken by the courts in Mouse's Case and Southport and with the
admiralty rule. Francis Bohlen, for example, asserted that where others' lives, but not one's own,
are at stake, property may be destroyed without any corresponding obligation to pay
compensation.105 Robert Keeton generally supports the position taken by the Restatements but is
skeptical about whether a person who destroys property to save the lives of others has any
obligation to pay for the property.106 Neither Prosser107 nor Page Keeton108 really discusses the
situation where property is destroyed to save life; they merely note the Restatements' position.
There is a somewhat more extensive discussion in the Harper, James, and Gray treatise,109 but
this largely tracks the Restatements' position. Common sense and a moment's reflection, I
submit, clearly show that the position actually taken by the few cases on the subject is the most
rational and sensible one.
Consider the following situation. In many states -- including, for example, California,110
New York,111 and Washington112 -- the owners and operators of aircraft are not strictly liable for
ground damage that is not occasioned by their fault. Requiring someone to pay for property
destroyed in order to save lives would encourage an airline pilot who is obliged by an act of God
to make a forced landing to place his life and those of his passengers in greater jeopardy because
the safest alternative landing place has very valuable flower beds on it, while nearby less
valuable vacant land is rockier and less flat. Surely the possible value of the property that might
be destroyed should not enter into the pilot's consideration at all. The situation becomes even
more ludicrous when the actor is in no danger himself but destroys property to save the life of a
third party. The Restatement (Second) clearly makes the actor liable for the property he has
104
See CHRISTIE, supra note 23, at 981, n.26 for references to the more general theoretical literature prompted by the
Vincent case.
105
See Francis H. Bohlen, Incomplete Privilege to Inflict Intentional Invasions of Interests of Property and
Personality, 39 HARV. L. REV. 307, 317-18 (1926).
106
See Robert E. Keeton, Conditional Fault in the Law of Torts, 72 HARV. L. REV. 401, 415-18, 427-30 (1959).
107
See PROSSER, supra note 103, § 24, at 126-27.
108
See W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 24, at 145-48 (5th ed. 1984).
DAN B. DOBBS, THE LAW OF TORTS § 108 (2000) gives the matter only the very briefest consideration.
109
FOWLER V. HARPER, ET AL., 1 THE LAW OF TORTS § 1.22, at 1:84-89, § 2.43, at 2:140-42 (3d. ed. 1996).
110
See Southern Cal. Edison Co. v. Coleman, 310 P.2d 504, 505 (Cal. App. Dep't Super. Ct. 1957) (declaring that
"[t]here is no California case which holds that a pilot is liable for collision damage independent of negligence");
Boyd v. White, 276 P.2d 92, 98 (Cal. Dist. Ct. App. 1954) (identifying as the general rule in California that "the
owner (or operator) of an airship is only liable for injury inflicted upon another when such damage is caused by a
defect in the plane or its negligent operation").
111
See Wood v. United Air Lines, Inc., 32 Misc.2d 955, 958 (N.Y. Sup. Ct. 1961) (rejecting strict liability in the
context of operating an airplane, and applying the rule that "to constitute an actionable trespass there must be an
intent to do the very act which results in the immediate damage").
112
See Crosby v. Cox Aircraft Co., 746 P.2d 1198, 1202 (Wash. 1987) (holding that "owners and operators of flying
aircraft are liable for ground damage caused by such aircraft only upon a showing of negligence").
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Symposium: Vincent v. Lake Erie Transportation Co. and the Doctrine of Necessity [2006], Article 7
destroyed.113 One would be hard put to create a doctrine more calculated to discourage people
from coming to the aid of imperiled human beings.114
One should finally note that public authorities also have a privilege to destroy property in
order to save life or to deal with public emergencies, and are under no common law duty to pay
compensation to the owner of the property when they exercise the privilege.115 Of course, in
many jurisdictions, statutory schemes provide for compensation in some situations when
property is destroyed on grounds of public necessity.116 But that is another matter.
113
See RESTATEMENT (SECOND), § 263(2).
Professor Weinrib, who seems to accept that the Talmud requires a person who saves his own life by destroying
the property of innocent third parties to pay compensation, asserts that the Talmud specifically declares that rescuers
are under no such liability, although this is not in accordance with strict law (min hadin). See Ernest Weinrib,
Rescue and Restitution, 1 S'VARA, 59, 62-64 (1990).
115
See, e.g., National Bd. of YMCA v. United States, 395 U.S. 85, 92 (1969) (stating that where the government
takes action to protect a private party, the public need not bear the cost of losses that might result from that action);
United States v. Caltex, Inc., 344 U.S. 149, 154 (1952) (noting that "in times of imminent peril . . . the sovereign
could, with immunity, destroy the property of a few that the property of many and the lives of many more could be
saved"). The YMCA case involved property destroyed when U.S. troops took refuge in private buildings to escape
raging mobs in the Panama Canal Zone. See YMCA, 395 U.S. at 87-88. Caltex involved the destruction of property
in the Philippines during World War II to keep it from falling into the hands of the invading Japanese. See Caltex,
344 U.S. at 151. In Burmah Oil Co. v. Lord Advocate, 1965 App. Cas. 75 (appeal taken from Scot.), the House of
Lords rejected the traditional approach taken in Caltex which distinguished between property taken for consumption,
for which compensation was due, and property destroyed to prevent its falling into the hands of the enemy, for
which no compensation was due. But Parliament disagreed and promptly reinstated the traditional doctrine, directing
dismissal of the claim in Burmah Oil itself while that case was on remand for an assessment of the plaintiff's claim.
See War Damage Act, 1965, ch. 18 (Eng.). For cases discussing municipal government liability in peacetime
contexts, see Surocco v. Geary, 3 Cal. 70 (1853) (holding that the government was not liable for the costs of
destroying buildings to prevent the spread of a fire); Seavey v. Preble, 64 Me. 120 (1874) (holding that the
government was not liable for the costs of destroying wallpaper in the homes of smallpox victims); Putnam v.
Payne, 13 N.Y. 311 (1816) (holding that the government was not liable for the costs of destroying mad dogs).
Governmental destruction of property also does not give rise to any constitutional claim for compensation against
state governments under the Fourteenth Amendment. See Miller v. Schoene, 276 U.S. 272, 280 (1928) (holding that
Virginia did not have to compensate owners of cedar trees destroyed to save apple trees because "preferment of [the
public] interest over the property interest of the individual, to the extent even of its destruction, is one of the
distinguishing characteristics of every exercise of police power which affects property"). The Restatement (Second)
tries to capture, in a simplified way, the essence of these cases. See RESTATEMENT (SECOND), § 262 ("One is
privileged to commit an act which would otherwise be a trespass to a chattel or a conversion if the act is or is
reasonably believed to be necessary for the purpose of avoiding a public disaster."). For a discussion of the
importance of the distinction in the domestic context between the public destruction of property in situations of
necessity and the consuming or using of such property whatever the justification, see Jed Rubenfeld, Usings, 102
YALE L.J. 1077, 1118-30 (1993).
116
For example, municipal ordinances providing compensation to owners of urban real property whose buildings are
destroyed to prevent the spread of fire are of long standing. See, e.g., Mayor of New York v. Lord, 17 N.Y. 285
(1837) (discussing a municipal ordinance in New York passed in 1806 which directed the mayor to compensate
property owners whose property was destroyed at the mayor's direction to prevent the spread of fire). There is a
federal statute providing partial compensation to the owners of cattle that are legally required to be destroyed
because they suffer from foot-and-mouth disease. See 21 U.S.C. §§ 114a, 134a (2000). The latter scheme not only
recognizes that the public should bear a large part of the loss, since the benefits of destroying the cattle to prevent
the spread of the disease redound to the public good, but also recognizes the more pragmatic consideration that the
cattle owners, whose cooperation is essential, are more likely to cooperate with the public authorities if they receive
at least some compensation.
114
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Christie: The Unwarranted Conclusions Drawn From Vincent v. Lake Erie
The difficult legal problems raised when property is destroyed to save lives concern not
the question of compensation, but rather the question of whether force may be used against the
protesting owner of the property that needs to be destroyed.117 In the cases of private necessity
that have thus far been litigated, this has not been a major issue. The typical case concerns a
trivial trespass on someone's land or the destruction of property in an emergency situation in
which the possibility of serious strife did not arise.118 But might not a situation arise in which the
possessor seriously objects to the invasion of his interests, such as when a desperate person
attempts to break into his home? We will discuss this question at length when we come to
consider Coleman and Feinberg's principal contention, also endorsed by the Restatements and
supposedly supported by Vincent, that, in order to save one's life, one may take and consume
another person's property,119 since the problem presented by a resisting owner is more likely to
arise in that context.
IV. EVEN IF THERE IS NO LEGAL OBLIGATION, ARE THERE MORAL OBLIGATIONS THAT ARISE
FROM THE DESTRUCTION OF PROPERTY TO SAVE LIVES?
Assuming that the destruction of property is morally as well as legally permissible when
necessary in order to save human lives, is there nevertheless a moral obligation to pay for the
harm done? I have maintained that if one destroys property in order to save life and is not at fault
in creating the underlying situation, then one has no legal obligation to compensate the owner for
his loss.120 How does that affect Coleman's implicit additional claim121 -- which Feinberg makes
explicitly122 -- that, in these kinds of situations, one has a moral obligation to pay
117
Recall that it was this concern which served as the American Law Institute's rationale for recognizing the
privilege to destroy or use another's chattels to save one's own property in section 263 of the Restatement and the
Restatement (Second). See supra note 78and accompanying text.
118
The cases involving trespass to land are in many ways just extensions of the generally recognized common law
privilege that travelers on a road can enter private property to avoid an obstruction on the road. See, e.g.,
RESTATEMENT (SECOND), § 195(1) ("A traveler on a public highway who reasonably believes that such highway is
impassable, is privileged . . . to enter . . . upon neighboring land in possession of another . . . ."). Of course, since the
entry normally does not involve a situation in which entry is necessary to save human life, the actor is under a legal
obligation to pay for any harm his entry might cause. In areas where there are no sidewalks, and such areas are quite
common in the United States, everyone at one time or another has walked across the edge of someone's lawn to
avoid puddles or on-coming vehicles. It is an odd person who would object to these invasions of his property
interests. Ploof v. Putnam, 71 A. 188 (Vt. 1908), the case in which the defendant's employee unmoored the plaintiff's
sloop during a storm, seems bizarre and the implication of that case that the plaintiff might have been legally
justified in using force to prevent his boat from being unmoored, see id. at 190 (describing the employee's action to
unmoor the plaintiff's vessel from his employer's dock as wrongful), does not raise disturbing implications.
119
See infra Part VI.
120
See infra notes 158-160 and accompanying text.
121
See COLEMAN, supra note 5, at 297-98.
122
See Feinberg, supra note 2, at 101-03 (proposing that when you invade another's home to escape the elements in
an emergency "almost everyone would agree that you owe compensation to the homeowner for the depletion of his
larder, the breaking of his window, and the destruction of his furniture").
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Symposium: Vincent v. Lake Erie Transportation Co. and the Doctrine of Necessity [2006], Article 7
compensation?123 After all, it is not necessary that one should have a legal obligation to do
something in order for it to be true that one has a moral obligation to do that something.
A moral universe in which the options are between no compensation at all or
compensation for full replacement value strikes me as an overly legalistic universe and not a
moral universe. Morality, for most people, requires subtler distinctions.124 What if the person
who saves his life by destroying someone else's property is practically penniless? Is such a
person morally obliged to spend his last nickel in an attempt to compensate, at least partially, the
person whose property he has destroyed? What if the person who has destroyed the property of
another to save his life or that of a third person could, without completely impoverishing himself,
afford to compensate the property owner, but the property owner is a far wealthier person? To
many it would be insulting even to be offered compensation in such circumstances. To others,
even payment of full replacement value might not be enough in some circumstances. I accept
that some moral obligations arise when one destroys property in order to save life, but the exact
content of these obligations will vary with the culture and the particular circumstances. They
might require payment of even more than full replacement value, or might require only an
expression of gratitude. The set of moral obligations could, of course, also include an obligation
that one be similarly forbearing and generous when others need to destroy his property in order
to save themselves.
V. IS THERE REALLY A LEGAL PRIVILEGE TO DESTROY THE PROPERTY OF OTHERS
TO PROTECT ONE’S OWN PROPERTY?
The fact that the privilege recognized by Restatement section 263 has been extended by
the Restatement (Second) to cover the destruction of someone's chattels to save someone else's
property125 shows how poorly considered that provision is, and how much has been read into the
cursory opinion of the majority in Vincent. That the Restatement (Second) also authorizes the use
and consumption of other people's property, even over their objections,126 only reinforces that
123
The lack of any legal obligation to pay compensation, of course, prevents us from arguing that the existence of
a legal obligation provides one reason for recognizing a similar moral obligation.
124
David Hume, for example, argues that justice is an artificial virtue because it makes sharp distinctions whereas
the natural virtues and vices "run insensibly into each other." DAVID HUME, A TREATISE OF HUMAN NATURE 529
(L.A. Selby-Bigge ed., London, Oxford Univ. Press 1888) (1739).
125
Compare RESTATEMENT, § 263(1) ("One is privileged to use or otherwise intentionally intermeddle with a
chattel while in the possession of another for the purpose of protecting himself, the other, or a third person from
death or serious bodily harm . . . .") (emphasis added), and id. second caveat ("The Institute expresses no opinion as
to whether . . . Subsection (1) is applicable to one who dispossesses another of a chattel for the purpose of protecting
himself, the other or a third person from death or serious bodily harm."), with RESTATEMENT (SECOND), § 263(1)
("One is privileged to commit an act which would otherwise be a trespass to the chattel of another or a conversion of
it, if it is . . . reasonable and necessary to protect the person or property of the actor, the other or a third person from
serious harm . . . .") (emphasis added).
126
See RESTATEMENT (SECOND), § 263(1), the relevant portions of which are quoted in the preceding note, see supra
note 125. By using the shorthand "trespass" in addition to the word "conversion" in section 263(1), the Restatement
(Second) is of course including use of another's property over his objection. See id. § 217 ("A trespass to a chattel
may be committed by intentionally (a) dispossessing another of the chattel, or (b) using or intermeddling with a
chattel in the possession of another.") (emphasis added).
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Christie: The Unwarranted Conclusions Drawn From Vincent v. Lake Erie
conclusion. For the moment, however, let us extend the focus of our discussion of the privilege
to destroy property to include only the additional situation in which someone destroys the
property of others to save his own property or that of others.127
What is particularly aggravating about the Restatements is their attempt to formulate
simple general rules to cover exceedingly complex and diverse situations. Indeed, though the
Restatements fail to recognize it, there are even some situations in which property may be
destroyed to save other property and no compensation is required, as for example, when an out of
control ship or vehicle is about to collide with one's own property.128 As I have already noted, the
Restatement (Second) admits that there is "scarcely any authority" to support its conclusions.129
And for good reason. No one, not even those who think it is sometimes permissible to kill an
innocent person to save the lives of a greater number of other innocent persons, believes that
there is a general privilege to kill an innocent person to save one's own life or the life of a third
party.130 Why, then, should there be a general privilege to destroy someone else's property to
save one's own? The fact that compensation must be paid and that such compensation often
seems an acceptable social accommodation because much property is either fungible or readily
translatable into a monetary equivalent does not mean that one has a broad privilege to destroy
someone else's property to save one's own. How can private individuals so cavalierly be granted
the power of eminent domain?
The Restatement (Second) declares that the act must not only be necessary but also
reasonable,131 so that one "whose chattel of small value is threatened with serious harm or even
with complete destruction may not be privileged to destroy a far more valuable chattel of another
in order to protect it."132 By its use of the word "may," the Restatement (Second) possibly seems
to recognize that it is not a matter of mere economic calculation. That money is not everything is
a proposition with which I would agree, but, in the context of the Restatement (Second)'s
recognition of a privilege to destroy someone else's property to save one's own property or that
of another, can one destroy a Van Gogh painting to preserve a family Bible that has been handed
127
I will discuss the so-called privilege to use or consume the property of others later in Part VI, B, infra.
See McKeesport Sawmill Co. v. Pennsylvania Co., 122 F. 184, 187 (W.D. Pa. 1903) (holding that where a
"defendant could not pass [plaintiff's coal boat, which was obstructing navigation] without seriously endangering the
safety of his own property, he had the right to remove such obstruction"); Commercial Union Assurance Co. v.
Pacific Gas & Elec. Co., 31 P.2d 793 (Cal. 1934) (holding that there was no liability for negligence where the
defendant broke partitions in a burning warehouse to save its copper and the plaintiffs claimed this enabled the fire
to spread and destroy their goods); cf. Owen v. Cook, 81 N.W. 285 (N.D. 1899) (holding that the defendant, who
started a back fire which burned the plaintiff's property in order to protect his own property from a prairie fire, was
not liable for negligence; it was conceded that the main fire would eventually have reached the plaintiff's property).
Corpus Juris Secundum also states that "[o]ne who acts with reasonable prudence, and with respect for the rights of
others, in endeavoring to rescue or protect his property in an emergency is not liable for resulting injury to the
property of another." 65 C.J.S. Negligence § 17(c) (1966).
129
See supra text accompanying note 81 (quoting RESTATEMENT (SECOND) APP., Reporter's note to § 263).
130
For example, Foot and Thomson, who are both strongly supportive of the notion that it is sometimes permissible
to kill an innocent person to save the lives of a greater number of innocent lives, suggest absolutely nothing of the
kind with respect to taking a single individual's life to preserve one's own life.
131
See RESTATEMENT (SECOND), § 263(1).
132
Id. § 263 cmt. d (emphasis added).
128
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Symposium: Vincent v. Lake Erie Transportation Co. and the Doctrine of Necessity [2006], Article 7
down in the same family for 350 years? And what about destroying the 350-year-old family
Bible or other irreplaceable heirloom to save the Van Gogh painting?133
Not only is there no authority to support the Restatement (Second)'s position, other than
an excessively broad interpretation of Vincent, but several of the other cases cited in general
support of Restatement (Second) section 197, the provision upon which Restatement (Second)
section 263 is expressly based,134 flatly hold that there is no privilege to destroy an innocent
person's property to preserve one's own property.135 One of these cases expressly declares that a
rule permitting such conduct by he "whose property is the more valuable, would lead to great
injustice."136 If such comparisons were to be made, the Louisiana Supreme Court continued, "it
would be proper to consider . . . the question of the comparative ability of the sufferers to sustain
the loss."137 The Restatement (Second) nevertheless ignores the thrust of these cases, and
contains a privilege to destroy the property of innocent people, even when that property poses no
threat to one's own property.138 By recognizing such a privilege, is the Restatement (Second)
seriously suggesting that if two people are interested in saving their own property the so-called
133
That property is destroyed that otherwise would not be harmed distinguishes this case from the "general average"
situation in Admiralty, see supra note 72and accompanying text. In the general average situation, it is assumed that
the ship and all the cargo, including the cargo sacrificed, would be lost if some cargo were not jettisoned. See
ROBINSON, supra note 72, at 764. That is why the person whose cargo is jettisoned is compensated by the owners of
the ship and of the cargo that is saved. The owner of the jettisoned cargo must, of course, absorb his own
proportionate share of the loss as well. Id. In the situation I am positing in the text, the owner of the Van Gogh
might wish to use the heirloom family Bible to stuff up a crack in the wall to prevent water damage to the painting
or the owner of the Bible might want to use the canvas on which the Van Gogh is painted to protect the Bible from
damage by torrential rain.
134
See RESTATEMENT, § 263 cmt. b ("The statement in this Subsection is analogous in part to the privilege to enter
land in the possession of another for the protection of person or property as stated in § 197."); RESTATEMENT
(SECOND), § 263 cmt. b (same); RESTATEMENT (SECOND) APP., Reporter's notes to § 263 ("[T]he principle stated in
this Section . . . must rest largely upon the analogy to the corresponding privilege to interfere with the exclusive
possession of land, stated in § 197."). Note, however, that unlike trespass to land, there is no liability for trespass to
chattels when no damage is done. See RESTATEMENT, § 263 cmt. b ("Since one is not liable in any event for a
harmless intermeddling with chattels in the possession of another . . . the principle of the incomplete privilege to
enter land stated in § 197 is of no significance with respect to the actor's liability to the possessor of chattels.");
RESTATEMENT (SECOND), § 263 cmt. b (same).
135
See RESTATEMENT, § 263 cmt. b ("The statement in this Subsection is analogous in part to the privilege to enter
land in the possession of another for the protection of person or property as stated in § 197."); RESTATEMENT
(SECOND), § 263 cmt. b (same); RESTATEMENT (SECOND) APP., Reporter's notes to § 263 ("[T]he principle stated in
this Section . . . must rest largely upon the analogy to the corresponding privilege to interfere with the exclusive
possession of land, stated in § 197."). Note, however, that unlike trespass to land, there is no liability for trespass to
chattels when no damage is done. See RESTATEMENT, § 263 cmt. b ("Since one is not liable in any event for a
harmless intermeddling with chattels in the possession of another . . . the principle of the incomplete privilege to
enter land stated in § 197 is of no significance with respect to the actor's liability to the possessor of chattels.");
RESTATEMENT (SECOND), § 263 cmt. b (same).
136
Latta, 59 So. at 254.
137
Id.
138
See RESTATEMENT (SECOND), § 263(1). Section 904 of the German Civil Code states that, provided one pays
compensation for the harm done, property may be destroyed if "the interference is necessary for the avoidance of a
present danger and the damage threatened is disproportionally great compared to the damage caused to the owner"
of the property destroyed. BGB, supra note 73, § 904. How this provision would be applied in a concrete situation is
hard to ascertain. George Fletcher, for example, cites a commentator on section 904 who rejects out of hand the idea
that it could be used to justify the actions of someone who seizes another's raincoat in order to save his own suede
coat from destruction in an unexpected rainstorm. See GEORGE P. FLETCHER, RETHINKING CRIMINAL LAW 777
(1978) (citing H.H. JESCHECK, LEHRBUCH DES STRAFRECHTS: ALLGEMEINER TEIL (2d ed. 1972)).
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Christie: The Unwarranted Conclusions Drawn From Vincent v. Lake Erie
privilege accrues to the one who lays hold of his neighbor's property first? I ask this since we can
conceive of instances where the guidance provided by the Restatement (Second) might justify
either actor in taking the other's property (such as the example given above of the family Bible
and the Van Gogh painting). This is an important matter because, as we shall soon discuss in
greater detail, there remains the question of whether the owner of the property about to be taken
and destroyed can take reasonable steps to protect his property. Despite the Restatement
(Second), most people would surely believe that he could.
As we have already noted, the Restatement (Second) relies on Vincent as support for its
view of the privilege to destroy property.139 If the key element in Vincent was the reattaching of
the lines so that the case did not involve a variant of storm damage, which seems to be the how
the majority viewed it,140 I would submit that the case is not an instance of the exercise of a
privilege at all. It is simply a case of intentionally damaging the property of another in the civil
sense of "intention," that is, of engaging in conduct that one knows, with substantial certainty,
will lead to that result.141 At the very least, it would amount to negligent or reckless behavior.
That compensation should be paid in such circumstances is not at all surprising or controversial.
It is the attempt to read more into the Vincent case than the actual facts of the case will readily
permit that has encouraged some to conclude that, if one must pay compensation for property
destroyed in order to save other property, then one must also pay compensation whenever
property is destroyed to save human life.
VI. SPECIAL PROBLEMS CREATED BY THE RECOGNITION OF A RIGHT OF ENTRY BY FORCE INTO THE
DWELLINGS OF OTHERS AND THE TAKING AND USE OF THE PROPERTY OF OTHERS IN EMERGENCY
SITUATIONS
A. Entry into Dwellings
Although it is often difficult, if not impossible, to separate the two situations, the main
thrust of the paradigm created by Feinberg and Coleman on the basis of Vincent is not the simple
destruction of property but the taking and consumption of property. Feinberg's backpacker, for
example, enters an unoccupied vacation cabin.142 According to Restatement (Second) section
197, he is legally privileged to do so when necessary to avert serious harm to himself.143 That the
cabin is unoccupied avoids some of the more difficult problems. For example, what if the cabin
reasonably appears to be unoccupied but in fact is actually occupied? Should this circumstance,
which could not reasonably be known by the backpacker, make a difference with regard to his
legal or moral rights? What about the more extreme case in which the cabin is the principal
residence of a family and is known to be occupied?
139
See supra note 74and accompanying text.
See supra note 29and accompanying text.
141
See RESTATEMENT (SECOND), § 8A ("The word 'intent' is used throughout the Restatement of this Subject to
denote that the actor desires to cause consequences of his act, or that he believes that the consequences are
substantially certain to result from it.").
142
See Feinberg, supra note 2, at 102.
143
See RESTATEMENT (SECOND), § 197(1)(a) ("One is privileged to enter or remain on land in the possession of
another if it is or reasonably appears to be necessary to prevent serious harm to (a) the actor . . . .").
140
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Symposium: Vincent v. Lake Erie Transportation Co. and the Doctrine of Necessity [2006], Article 7
In the comments to section 197, the Restatement (Second) states that, when necessary to
prevent serious harm, a person is privileged "to break and enter or to destroy a fence or other
enclosure and indeed a building, including a dwelling."144 However, "more may be required to
justify [entering a dwelling] than . . . entry upon other premises" and this is "a fact to be taken
into account in determining the reasonableness of the defendant's action[s]."145 This was a
departure from the first Restatement in which the privilege was described as extending to
buildings "other than a dwelling."146 Furthermore, according to the same comment in the
Restatement (Second), "the privilege . . . carries with it the subsidiary privilege to use reasonable
force to the person of the possessor or any third person."147 The Reporter's notes recognized that
"[d]irect authority is lacking as to the subsidiary privilege to use force against the person, or to
break or enter an enclosure or a building,"148 but argued that "[t]o render the privilege of entry
effective the subsidiary privilege is obviously necessary."149 I am skeptical that the Restatement
(Second) accurately states the law on this subject. It is hard for me to conceive that courts would
sanction the use of force against an objecting homeowner by a private person who, in order to
protect his own life, seeks to enter the homeowner's dwelling.
The Reporter's notes recognize that Ploof v. Putnam150 only held that the possessor could
not use force to prevent the plaintiff and his wife and children from entering on his land.151 The
only case remotely involving a breaking and entry cited by the Restatement (Second) is People v.
Roberts,152 in which a conviction was upheld when critical evidence was obtained as a result of
the police getting the manager to let them into an apartment when no one answered their knock
and after the police heard "several moans or groans that sounded as if a person in the apartment
were in distress."153 The trial court found that the officers reasonably believed that someone
inside the apartment was in distress and in need of help, and that the police had entered for the
purpose of rendering assistance.154 It is a long way from this situation to one in which there is an
entry against the wishes of the possessor and even further to a case in which the intruder meets
resistance from the possessor and resorts to force to gain entry.
B. The Taking and Consumption of Others' Property
The more important aspects of the paradigm we have been discussing involve not just
unauthorized entry and the simple destruction of property but also, and more importantly, the
taking and consumption of someone else's property. In Feinberg's example, the desperate
144
Id. § 197 cmt. g; cf. id. cmt. h ("[I]t may be reasonable for the actor to break through a fence in order to rescue his
dog who is drowning in the plaintiff's pond, where it would not be reasonable for him to break into the plaintiff's
dwelling in order to release the same dog from temporary confinement.").
145
Id. cmt. h.
146
RESTATEMENT, § 197(1).
147
RESTATEMENT (SECOND), § 197 cmt. g.
148
RESTATEMENT (SECOND) APP., Reporter's notes to § 197 cmt. g.
149
Id.
150
71 A. 188 (Vt. 1908).
151
See id. at 189, discussed in RESTATEMENT (SECOND) APP., Reporter's notes to § 197 cmt. g.
152
303 P.2d 721 (Cal. 1956), cited in RESTATEMENT (SECOND) APP., Reporter's notes to § 197 cmt. h.
153
Roberts, 303 P.2d at 722.
154
See id. at 724.
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Christie: The Unwarranted Conclusions Drawn From Vincent v. Lake Erie
backpacker eats his unknown host's food and burns his host's furniture in order to keep warm.155
In Coleman's less complex example, Hal injects (or possibly ingests) Carla's insulin into his body
to prevent himself from lapsing into a coma.156
To focus for the moment on the latter example, Coleman concludes that Hal is justified in
taking and using the insulin since he needs it to preserve his life, but that Carla is entitled to
compensation since her rights have been infringed (although not violated).157 Legal support for
this doctrine and its application in the situation posed is supposedly derived from Vincent v. Lake
Erie Transportation Co.158 But, as we have seen, the Vincent case has nothing to say about this
situation. At the time Vincent was decided in 1910, Hal's taking of Carla's insulin would almost
certainly have been considered theft, and the entry into her house or apartment in order to obtain
the insulin (we are not told how Hal gained entry) probably amounted to an additional crime
(either breaking and entering or some form of common law or statutory burglary).159
Admittedly, since 1910, and more specifically in the last thirty years, a number of states
have incorporated "lesser evil" defenses into their criminal codes.160 Admittedly also, as we have
already seen, both the Restatement and the Restatement (Second) grant a privilege not only to
destroy the chattels of another in cases of necessity but also the privilege to use the chattels of
another, if necessary, always subject to an obligation to pay compensation for any harm that
might be caused by the exercise of the privilege.161 This is, of course, the position espoused by
Coleman and Feinberg. But, as we have noted, the Reporter's notes to the Restatement (Second)
candidly admit that "[t]here is scarcely any authority to support the principle stated in this
Section."162
That the so-called privilege not only to destroy but also to use the chattels of another, first
recognized in 1934 by Restatement section 263, was never adequately thought out is shown by
155
Feinberg, supra note 2, at 102. I am prepared to accept that it is possible that there might be some local custom
that might bear on these sorts of situations. For example, John McPhee writes of a custom in the most sparsely
populated regions of Alaska to leave remote cabins unlocked and stocked with food for the use of people in need,
such as the survivors of a plane crash. JOHN MCPHEE, COMING INTO THE COUNTRY 248-57 (1976). Notice, however,
that the cabins are unlocked. I have no idea whether this custom still persists. The actual example that McPhee gives
took place in 1943.
156
See COLEMAN, supra note 5, at 282.
157
Id. at 282-83.
158
124 N.W. 221 (Minn. 1910), cited in COLEMAN, supra note 5, at 293.
159
In The Queen v. Dudley & Stephens, 14 Q.B.D. 273, 286 (1884), the court accepted Sir Matthew Hale's
declaration that it was not the law of England that a starving man could steal bread. This statement was accepted as
stating the law in several American textbooks. See, e.g., WILLIAM L. CLARK, JR., HANDBOOK OF CRIMINAL LAW 9697 (Francis B. Tiffany ed., 2d ed. 1902); JUSTIN MILLER, HANDBOOK OF CRIMINAL LAW 169 (1934). Modern law
seems to be the same. See, e.g., State v. Moe, 24 P.2d 638, 640 (Wash. 1933) (rejecting poverty as a defense to theft
of groceries); WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., HANDBOOK ON CRIMINAL LAW § 5.4, at 444 (2d ed.
1986) (stating that "'economic necessity' is no defense to crime").
160
See OFFICIAL MODEL PENAL CODE at § 305, cmt.5.
161
See RESTATEMENT, § 263(2); RESTATEMENT (SECOND), § 263(2).
162
RESTATEMENT (SECOND) APP., Reporter's notes to § 263. It is ironic given the paucity of authority for section
197, which discusses the privilege to enter the land of others in emergency situations, that the Model Penal Code
refers to the general acceptance of the principle of necessity in tort law as one of the bases for recognizing a "lesser
evil" defense in the criminal law. See OFFICIAL MODEL PENAL CODE § 3.02, cmt. 3, n. 11 (Official Draft and Revised
Comments, 1985).
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Symposium: Vincent v. Lake Erie Transportation Co. and the Doctrine of Necessity [2006], Article 7
the second of the two examples offered as illustrations: "A is seriously hurt in an automobile
accident. He requires B, against his will, to drive him in B's automobile to a hospital. A is liable
to B for harm to the upholstery of the automobile caused by the blood dripping from his
wounds."163 Provided only that A is prepared to pay some sort of compensation, the Restatement
would thus allow the injured A to kidnap B and force B to drive him to the hospital!164 If B were
to resist, A could then, to make his privilege effective, force B at gunpoint to serve as an
unwilling chauffeur and, if necessary, presumably shoot B and commandeer B's car. Fortunately,
the Restatement (Second) omits this ridiculous illustration. It presents instead a new illustration
in which "A is seriously hurt in an automobile accident. While waiting for an ambulance, he uses
B's scarf, over B's objection, as a tourniquet. A is privileged to use the scarf, but is subject to
liability to B for the harm caused to it by the blood."165 Those unlucky enough to be standing
near the scene of an accident are thereby subject to having their clothing forcibly removed to
make bandages for the injured. Their only consolation is that they will be compensated for the
damage to their clothing. How about the loss of their time if they must return home to put on
fresh clothes to look presentable at a business meeting? I am not suggesting that one might not
wish to volunteer his clothing in these circumstances, but that it may lawfully be taken away
from him by force strains credulity.
The other two illustrations in the Restatement (Second) involve the taking of medicine
from a pharmacist who refuses to sell it -- first by a patient attempting to save his own life and
second by the patient's doctor.166 Again, although there is no discussion of the issue, one may
presume that the medicine may be taken from the pharmacist by force if necessary to make the
privilege effective.167 As might be expected, I have been unable to find a case in which the
defense of necessity has been raised, much less upheld, in a prosecution for theft.168 This is not
surprising, since the law has, if anything, always taken a dimmer view of the taking and
consumption of property than it has of its mere destruction.169
C. The Right to Resist a Taking
In his attempt to describe the appropriate legal regime to govern this subject, Coleman,
like the drafters of the Restatement, does not consider what would happen if Carla were suddenly
to appear and refuse to allow Hal to use any of her insulin. She may not believe that Hal has
accurately assessed how much insulin to leave her, or she may be apprehensive about her ability
to replace the insulin taken, or doubtful about how soon Hal will be able to pay her, or perhaps
simply outraged that Hal wants to take her insulin. Despite Hal's promise to pay her -- even on
163
RESTATEMENT, § 263 cmt. f., illus. 2.
See RESTATEMENT (SECOND), § 263 cmt. e ("[T]he actor . . . is not entitled to commandeer the use of the other's
goods for his own protection, or that of a third person, without making good any loss thus caused.").
165
Id. § 263 cmt. e, illus. 1.
166
See id. § 263 cmt. e, illus. 2-3.
167
The fact that a superficially appealing general principle can have bizarre consequences when we try to give
concrete examples shows the inherent limitations of trying to decide concrete cases by resort to principle.
168
See sources listed supra note 159 and infra note 174 (confirming the general rule that economic necessity is no
defense to a criminal charge).
169
For example, even though the doctrine of public necessity allows governments to destroy private property in
emergency situations without having to pay compensation to the owner, it does not permit them to take and consume
private property without compensating its owners. See supra notes 115 and 116.
164
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Christie: The Unwarranted Conclusions Drawn From Vincent v. Lake Erie
the spot -- for the insulin, may she legally tell him to leave her insulin alone? With due respect to
Coleman and the drafters of the Restatements, I believe she may. May she legally defend, with
physical force, her insulin? Again, I believe she may. Admittedly, she may not use deadly force
to defend her insulin -- unless she reasonably thought Hal might take all of it -- but if she
interposed her body between Hal and the insulin and he tried to push her aside, she could use all
force reasonably necessary to protect her person.170
If all of this is hornbook law, how is it possible to maintain that Hal is legally justified in
taking the insulin? Admittedly, if Hal succeeds in taking the insulin, he will be under an
obligation to compensate Carla for the taking -- in legal parlance, for converting it -- but that
does not show that his taking of her insulin by force was legally justified. Sometimes all the law
can do is to impose a monetary remedy, which is why, from a realist's perspective, it is difficult
to distinguish between a fine and a tax. Indeed, for a person sufficiently rich so that parking fines
are meaningless expenses, the public streets are one big parking lot -- at least in the absence of
towing or booting. But, in the situation we have been discussing, I would submit that Hal is
subject to criminal prosecution for criminal assault and theft,171 even if the prosecutor might be
reluctant to charge him; and Carla, in most jurisdictions, is in theory entitled to punitive
damages,172 even if juries might be reluctant to impose them. This hardly seems the stuff that
legal justification is made of.
D. The Moral Implications of a Supposed Privilege to Take and Use the Property of Others
We may accept, without hesitation, that both the owner of the vacation cabin in
Feinberg's example and Carla, the owner of the insulin in Coleman's example, have some moral
obligation to help the backpacker and Hal, respectively. Do the property owners' moral
obligations give either the backpacker or Hal the moral right to take the property? If they do,
what would be the nature of the moral obligations that the backpacker and Hal would assume by
170
For a discussion of the privilege to defend one's person when one is physically attacked while protecting one's
property, see KEETON ET AL., supra note 108, at 132-4. It might be said, of course, that since Hal's taking of the
insulin is privileged, Carla has no privilege to act in defense of her property and, subsequently, of her person when
Hal tries to overcome her efforts. See id. at 131-32; see also RESTATEMENT (SECOND), § 197(2) ("Where [a
privileged] entry is for the benefit of the actor . . . he is subject to liability for any harm done in the exercise of the
privilege . . . except where the threat of harm . . . is caused by the tortious conduct . . . of the possessor.") (emphasis
added). The only two cases cited by Professor Keeton and his colleagues-Arlowski v. Foglio, 135 A. 397 (Conn.
1926), and Stuyvesant v. Wilcox, 52 N.W. 465 (Mich. 1892)- are not helpful. See KEETON ET AL., supra note 108, at
132, n.5 (citing Arlowski and Stuyvesant in support of the proposition that "an erroneous belief, however reasonable,
that the intruder did not have a privilege will not justify the use of force against the intruder"). The plaintiff in one
case entered the defendant's property to recover his own personal property, see Stuyvesant, 52 N.W. at 465, and in
the other the plaintiff sought to recover his own livestock, see Arlowski, 135 A. at 398. It takes greater imagination
than I possess to believe that these cases, which involve the attempt to reclaim unlawfully detained property, are
authority for denying Carla the right to defend what everyone agrees is her own property.
171
Cf., e.g., LAFAVE & SCOTT, supra note 159, § 5.4, at 444 ("'[E]conomic necessity' is no defense to crime . . . .").
172
In most jurisdictions, the availability of punitive damages would depend on the degree to which the defendant's
acts could be demonstrated to be "outrageous" or the product of "reckless indifference." See RESTATEMENT
(SECOND), § 908(2):
Punitive damages may be awarded for conduct that is outrageous, because of the defendant's evil
motive or his reckless indifference to the rights of others. In assessing punitive damages, the trier
of fact can properly consider the character of the defendant's act, the nature and extent of the harm
to the plaintiff that the defendant caused or intended to cause and the wealth of the defendant.
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Symposium: Vincent v. Lake Erie Transportation Co. and the Doctrine of Necessity [2006], Article 7
exercising their supposed rights? Whatever moral obligation they might assume by exercising the
supposed right to take and consume property, it cannot be the simplistic and legalistic obligation
to pay for the goods taken and consumed. Surely morality does not insist that, assuming Hal is
justified in taking and consuming Carla's insulin, Hal thereby becomes unequivocally morally
obliged to pay Carla its fair market value. What if Hal is penniless? What if Carla is a
billionaire? Morality is more subtle than that.
Coleman nevertheless argues that Hal is only justified in taking Carla's insulin if he is
prepared to compensate her. He characterizes the taking of the insulin as an "ex post contract" in
which compensation is a condition of its "justifiability."173 From a moral perspective, I am not so
sure that compensation makes a great deal of difference, particularly if Carla is well off. I do, of
course, accept that if Hal were rich and the value of the property taken were great, this might
give rise to a new moral obligation to compensate or better still to help Carla if she has fallen on
hard times.
I am unconvinced, however, that either the backpacker or Hal has a moral right to take
and consume the goods in question. Suppose Carla suddenly appears and refuses -- let us
presume wrongfully from a moral perspective -- to let Hal have some insulin. We have just
suggested that Hal would not be legally justified in taking the insulin from Carla by force. Is Hal
nevertheless morally justified in taking the insulin from her by force? The backpacker and the
insulin examples excite our sympathy because they are unlikely to occur -- certainly they are
outside the experience of most of us -- and therefore the example they set is unlikely to have
major repercussions. In almost every urban area, however, there are people on the brink of
starvation, often through no fault of their own, and many homeless people desperately in need of
shelter. I do not think that society could tolerate their taking and consuming the food or goods of
others.174 In cases of general public disorder, the authorities never tolerate looting -- a similar
situation on a larger scale -- if they can help it.
The problem of squatters is perhaps more troublesome, but certainly there is no general
public recognition of the moral legitimacy of squatting, that is, the entry of homeless and needy
persons into vacant dwellings. In short, although our society recognizes a moral obligation on the
part of those who have to help those who have not, it is not at all clear to me that the way our
morality enforces this obligation is by giving the destitute a privilege to take and consume.175 It
is significant that, in our literature and our folklore, the refusal of people to discharge their moral
obligations is met with curses or a spate of bad luck, not with outright aggression by those in
173
COLEMAN, supra note 5, at 295.
For example, during the Great Depression, the convictions of several members of a crowd of rioters who were
convicted of stealing groceries were affirmed over their objection that they were denied the right to present the
defense of economic necessity. See State v. Moe, 24 P.2d 638, 639-40 (Wash. 1933).
175
St. Thomas Aquinas, in Summa Theologiae, opined that the natural law requires whatever material things a
person possesses in superabundance be used to help the poor, and further stated that such goods may be taken by a
needy person in a time of imminent danger. See ST. THOMAS AQUINAS, ON LAW, MORALITY, AND POLITICS, q. 66, a.
7, at 186 (William P. Baumgarth & Richard J. Regan eds., Hackett Publishing Co. 1988) (1274). John Locke
similarly declared that, in the state of nature, the needy have a right to the "[s]urplusage" of their fellows. JOHN
LOCKE, TWO TREATISES OF GOVERNMENT 170 (Peter Laslett ed., Cambridge Univ. Press 1988) (1690). "Charity
gives every Man a Title to so much out of another's Plenty, as will keep him from extream want, where he has no
means to subsist otherwise . . . ." Id. Whether this right carried over to civil society is another matter.
174
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Christie: The Unwarranted Conclusions Drawn From Vincent v. Lake Erie
need of assistance.176 This seems to me to be an implicit, but nevertheless clear, recognition of
the point I have been making.
176
A classic illustration is the fairy tale The Golden Goose, in which two brothers who refuse to share their food and
drink with a hungry and thirsty old man are met with bad luck and the third brother, who does share his food and
drink with the old man, is blessed with extraordinary good fortune. See THE COMPLETE BROTHERS GRIMM FAIRY
TALES 274-77 (Lily Owens ed., 1981); see also Matthew 25:31-40 (New King James):
When the son of man comes in His glory . . . then He will sit on the throne of His glory. All the
nations will be gathered before Him, and He will separate them one from another, as a shepherd
divides his sheep from the goats. And He will set the sheep on His right hand, but the goats on the
left. Then the King will say to those on His right hand, "Come, you blessed of My Father, inherit
the kingdom prepared for you from the foundation of the world: for I was hungry and you gave
Me food; I was thirsty and you gave Me drink; I was a stranger and you took Me in; I was naked
and you clothed Me; I was sick and you visited Me; I was in prison and you came to Me." Then
the righteous will answer Him, saying, "Lord, when did we see You hungry and feed You, or
thirsty and give You drink? When did we see You a stranger and take You in, or naked and clothe
You? Or when did we see You sick, or in prison, and come to You?" And the King will answer
and say to them, "Assuredly, I say to you, inasmuch as you did it to one of the least of these My
brethren, you did it to Me."
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